Saraah!

Philippine elections in recent years have seen a major shift from a benign exercise of the right of suffrage to a dynamic exercise of the right of freedom of speech and of the press. What was then held as a monopoly by the powers-that-be over the national political and socio-cultural climate is now a matter of public scrutiny and opinion.

Everyone participates in the decision-making intimately, such that the results of the elections merely reflect months of debate and sizing-up the electoral candidates that represent different platforms and agendas. Come Election Day, people flock the precincts to cast down their final adjudication as a result of a deliberate and painstaking mental process of deciding who to vote.

Put simply, the ballot is a culmination of a protracted, in a manner of speaking, argument between choices incipient from the first day of election campaign and perhaps even before the electoral race has started.

A neophyte candidate, who has not been so exposed to public opinion and scrutiny, shall first learn that it is difficult to crunch the decided advantage of reputation and familiarity just several months prior to the elections. No amount of campaign or propaganda will overcome the obstacle of convincing the compact majority merely on one’s objective merits.

To say nothing of the fact that the Filipino voter is no longer ignorant of current events and issues, therefore is much keener in analysis and informed with regards his choice; which choice requires a period of incubation quite unlike certain institutions where one is readily identified as either republican or democrat.

The Filipino voter is an undecided voter right to the very day he sits to write down his final decision. Precisely on this point, the issue of constitutionality of state regulation viz. prior restraint on surveys and exit polls, to prevent the perils of band-wagon effect, trending, last minute junking of weak candidates and dagdag-bawas, among a few, is raised on these cases.

In fine, respondent COMELEC argues that the exit polls will unduly hinder free thought during elections, and the surveys will exploit the susceptibility of the voter to popular opinions. The main idea is to bar the publication of surveys during the proximate periods to which the voters are likely to be cramming frantically who to put into office.

Likewise, the result of the exit polls are to be held at bay until such time authorized tabulators namely, NAMFREL and COMELEC, have signed and sealed the final results as to avoid confusion. As a response, petitioners ABS-CBN, a media magnate, and Social Weather Station, a non-profit organization specializing in demographic, political, economic and social condition surveys, invoke the right to freedom of speech and of the press against the prohibition.

Public respondent argues that the regulations on both instances are pursuant to a valid state interest to maintain the credibility, integrity, secrecy and sanctity of the elections. As such, the constitutionally protected freedoms invoked by both petitioners “are not immune to regulation by the State in the legitimate exercise of its police power”, ABS-CBN v. COMELEC G.R. No.133486.

In addition to the supposedly valid exercise of police power, public respondent argues that the prohibition applies only to the element of time and is thus far removed from a discussion on the content and import of the surveys and polls, id. Lastly, the institutions that wish to conduct and publish the results of the surveys are private and independent entities to which the government has no means to control or supervise. There is the danger of manipulation and fabrication of data calculated to jeopardize the independence of the electorate to think or undermine the credibility of the election results.

Petitioners, on the other hand, aver that 1) the surveys are objective analyses of statistical data produced by a thorough and unbiased application of statistical theories under rigorous and established scientific methods, SWS v. COMELEC G.R. No. 14571, and 2) the publication thereof is not tainted with malice or bad faith to sabotage the elections or favor/endorse certain candidates, ABS-CBN v. COMELEC.

In other words, the petitioners wish to conduct and publish the surveys as part of their responsibility to report the motley running events of the election. It is not to compete and interfere with the duties of the COMELEC nor fashion the general opinions to suit a specific end, rather it is to supplement the information that is otherwise already and should be available to everyone anyway.

Supreme Court subsequently struck down as invalid the issuance and resolutions that enjoin the petitioners from doing the surveys on the ground that these violate the constitutionally protected freedoms of speech and of the press. Perfunctorily applying the doctrine of the dangerous tendency rule: words thus uttered, which have a dangerous tendency to bring about a substantive evil which the state has the right to prevent, are punished, the Court did not find, rightly so, any of that sort to justify the restrictions.

Under heightened scrutiny viz. the clear and present danger rule, the said resolutions also fail to pass muster. There is no ineluctable danger imminent and substantive as to warrant the curtailment of the freedom to speak out. At any rate, the Court a priori leans in favor of the freedom of speech and is highly doubtful of the validity of any state restraint to such a right.

In the same vein, where the danger and the state interest to prevent it do not outweigh the constitutionally protected rights much less should go off on a tangent between the suppression and the ideas suppressed or is too overbroad to step on domains other than the one sought to be stopped, the two COMELEC resolutions are unconstitutional and hence invalid.

It can not be gainsaid that the integrity and independent nature of elections must be held sacrosanct and inviolable. The electorate must be free from undue influence following their decisions and must not be coerced to think and decide against the core of their beliefs. Anyone who is about to exercise the right to suffrage must not be exposed to any form of violence, intimidation or manipulation.

The state, in fact, encourages the entire voting population to take part in the elections so that the results shall credibly support the claim that a decisive plebiscite has indeed taken place. It does so by ensuring that the precincts are safe and conducive to free thought. Likewise, whatever the person writes down, it is held secret so as to prevent a possible reprise from those who rely and seek his approval in the ballot but did not get it.

In the most basic sense, insofar as the voter is concerned, the election ritual comprise of these two tenets: 1) full and voluntary participation which must be free from violence and intimidation and 2) secrecy of the choice. Anything that goes beyond these becomes incidental adornments and socio-political consequences to the sacred right. On the other hand, insofar as the election per se is concerned, whereat the process of tabulation and the results are in question, only one thing must be born in mind: credibility.

Nowhere, therefore, can the surveys or the exit polls intrude into any of the basic principles of the elections and the electorate. First, the surveys and exit polls are no different from actual ratiocinations of public figures and opinion makers who have no qualms in endorsing a candidate or forecast the results of the election. Indeed, as if it were likely to be believed that the two things to all intents and purposes appear exactly alike, arguing without conceding that the surveys do in fact favor a few candidates, in relation to giving a premium to a popular side, should gain differential constitutional treatment born out of arguably the same effects.

Second, the results of such surveys are much the same as covering an event replete with details culled from the point-of-view of a responsible journalist. Surveys that report random statistical samples must receive the same protection as with a video or a picture which has the same power to change even the most steadfast opinions about a candidate. It would certainly run afoul our notions of freedom of the press to inhibit a display of pictures that would materially alter the stature and reputation of a candidate. The same way that the opinions of a select region show just how much a candidate is received variable to the programs and agendas he so proposed. A congressman of a district, for instance, may garner pre-election survey approval or disapproval based on real achievements and progress in his district.

On local levels, survey results that show a person with the highest approval rating usually have been a providential agent of change within the polled locality thus the rating. The trend on candidates, both winning pre- and post-election (dis-)approval respectively, makes further proof unnecessary.

Similarly, exit polls that tender post-election results are most likely indicative of the voting pattern in a precinct. The results become at the very least complementary to the tally of the official tabulators. If not, however, then contradicting reports, a discrepancy between polls and official count on the results are just as volatile as allegations of fraud and cheating by losing candidates, but not as repugnant to the exercise of the right of suffrage, speech and of the press.

In other words, endorsement, trending, dagdag-bawas etc. have been a problem or a phenomena in Philippine national elections even before the issues on surveys were raised. Perhaps the unique and novel introduction of surveys, a recent addition to the extant election culture in the country, has elicited strong dissent among the conservatives against its application. The argument is that conducting surveys is similar to riffling through the pages of a, let us say, a thick and unabridged Don Quixote book and randomly picking entries and passages to quote from. Thus, following this logic, it is an attempt to understand the entire work with just a few words and paragraphs lifted here and there. Indeed, a person with some knowledge of high school statistics will support the same conclusion about collected and mathematically processed data.

However, the surveys do not offer an exhaustive summary of the national sentiment like haphazardly reading broken pages of a magnum opus. Rather, these merely suggest a tendency of the population to go one way than the other. It is after all an exercise of scientific probability and it would be a dream of any statistician to be able to predict future results accurate to the dot.

Surveys are not reductionist nor deterministic in nature that would rob the voting population entirely of the freedom to choose and be heard. If it were so, then the moment that news of increase in hunger incidence viz. 9 out of 10 hungry people, nine people in a room would suddenly grumble for food to munch on.

Like every news item or opinion published everyday in papers or broadcasted in television, the information must be taken with a grain salt. The way that political participation, even by an undecided voter, has matured, the ordinary Filipino is more than capable of deciding and taking responsibility for his decisions.

Still, it is the Filipino people who shall suffer the consequences of a poorly contemplated choice of candidates. Even so, the right to make wrong decisions in the ballot is, after all, a constitutionally protected right.

This entry was posted on Sunday, March 16th, 2008 at 8:49 am and is filed under Law School. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.